Inchoate Offences in Polish Criminal Law

Abstract

The effect of the criminalisation of inchoate offences – in fact irrespective of how in a given
legal system (e.g. Polish or Ukrainian) they are regulated – is the moving of the protection of a legal
value to the foreground of its violation. In case of Polish criminal law, the “depth” of this foreground
is decided by the fact that an important stage of the iter delicti is constituted not only by the attempt,
which is almost always connected with criminal liability, but also the preparation preceding it, even
though it rarely generates such liability. One of the most complex problems therefore is the possibly
precise delineation of borders between the individual stages of the commission of an offence.
The problem appears to be especially complicated when we are looking for the border between the
always punishable attempt and the sometimes and simultaneously – as a rule – less severely punishable
preparation. The decision which of these stages has been executed should be first of all based
on the evaluation whether the perpetrator’s behaviour has reached the stage of advancement which
allows the statement that it is heading directly to commission. The theory of criminal law has long
known attempts of elaborating universal conceptions which could facilitate the interpretation of the
feature of “directness”, though their results – if one takes into account the imprecision of the border
thus delineated – are not thoroughly satisfactory.
The prima facie clear question of the subjective side of individual stages of commission of
a forbidden act (only intention is possible) may be the source of some dilemmas when one starts to
analyse its relation to the illegality of these forms, which is best visible in case of inapt attempt and
preparation. One of the most complicated and – in a way – most unsolvable dogmatic problems of
criminal law then appears i.e. the justification of their punishability. Since an inapt attempt cannot
lead to the commission of an offence, then – looking at it objectively – it does not create danger
for a legally protected value. As a result there also appear significant deficiencies in the objective
content of illegality.
In the foreground of the violation of a legal value there lie not only the stages preceding the
commission of an offence, but in case of same types of offences also the stage connected with their
commission, if the core of the offence is putting the value in jeopardy. This “occupation” of the foreground by the overlapping forms of a forbidden act results – especially in court practice – in difficulties
in deciding whether the behaviour of the offender constitutes a committed endangering of
a value or can “only” be seen as its attempted violation. The difference lies chiefly in the subjective
side (actus reus) which is usually difficult to prove.